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We were the international Jewish Coalition Against Sexual Abuse/Assault (JCASA); and were dedicated to ending sexual violence in Jewish communities globally. We did our best to operate as the make a wish foundation for Jewish survivors of sex crimes. In the past we offered a clearinghouse of information, resources, support and advocacy.

Monday, October 26, 1970

Jewish newspaper claimed thirteen-year-old Sadie P. Delon was brutally murdered, yet the police believed she committed suicide because she could not see a Jewish flag._________________________________________________________________________________

Disclaimer: Inclusion in this website does not constitute a recommendation or endorsement. Individuals must decide for themselves whether the resources meet their own personal needs.

_________________________________________________________________________________Swann Orders New Inquiry Into Girl's deathNew York Times - December 6, 1918_________________________________________________________________________________

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"Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has." --Margaret Mead_________________________________________________________________________________

Convicted of the murder of Esther Lebowitz, who
was a fifth grade student at Bais Yaakov School for Girls in Baltimore, MD.
Wayne Young was sentenced to life in prison.

Back in 1969, Wayne Stephen Young was 23 years old.
He was the owner of the fish store.

Young, who had no previous offenses
and pleaded not guilty, hit Esther on the head with a hammer and dumped her
body on the side of a road, throwing her book bag in a dumpster, according
to The Sun at that time. The Baltimore Sun also reported that Esther was
raped, a claim that Young was not charged with and continues to deny.

A Parole hearing was heard on Tuesday, January 10,
2006. Parole denied.

Convicted Murderer of Orthodox Girl Will Not Get New Trial (04/25/2014)

_________________________________________________________________________________Missing Baltimore Girl Is Found Slain, Beaten
Lebowitz Child's Body Is Discovered About A Half-Mile From Her HomeBaltimore Sun - October 2, 1969

Esther Lebowitz, an 11-year-old Northwest Baltimore girl who vanished
on her way home from school Monday afternoon, was found dead yesterday
morning little more than half a mile from her home.

_________________________________________________________________________________Store Owner Is Held In Lebowitz Murder Aquarium Shop Worker Is Stale Witness In Homicide And Rape Of Girl, 11Baltimore Sun - October 3, 1969

The owner of a Park Heights avenue tropical fish store was charged
yesterday with the homicide and rape of 11-year-old Esther Lebowitz.

Attorney Named in Lebowitz Case - Arraignment Is Put Off A 2d Time In Child's SlayingBaltimore Sun - October 7, 1969

The Criminal Court appointed a lawyer yesterday to represent the accused
murderer of 11year-old Esther Lebowitz after the defendant's
arraignment was postponed for the second time for lack of defense
counsel.

Wayne Stephen Young pleaded innocent by reason of insanity at his
arraignment yesterday in Criminal Court on charges of murder and rape
in the fatal bludgeoning last week of 11- year-old Esther Lebowitz.

A 24-year-old tropical-fish store operator "was trying to destroy his
mother" when he fatally bludgeoned an 11-year-old girl, a psychiatrist
called as a defense witness testified yesterday in Criminal Court.

Doctor Says Young Was InsaneBaltimore Sun - May 5, 1970The chief medical officer of the Supreme Bench of Baltimore testified
yesterday that Wayne Stephen Young was "temporarily insane" when he
allegedly bludgeoned 11-year-old Esther Lebowitz to death last year.

_________________________________________________________________________________Young Guilty of Murder in First DegreeBy George J. HiltnerBaltimore Sun - May 6, 1970

A Criminal Court jury which deliberated less than 30 minutes yesterday
convicted a 24-yearold tropical fish store operator of first-degree
murder of an 11year-old school girl after ruling that he was legally
sane.

HEADNOTES: Criminal Law -- Defense Of Insanity -- "Mental
Disease Or Defect" Standard -- "Mental Disorder" Test -- Applicable Test
At Trial And On Appeal -- Retroactivity -- Where Issue Of Accused's Sanity
Vel Non Was Submitted To Jury Framed Within Statutory Standard Of "Mental
Disease Or Defect" In Effect At Time Of His Trial, The Appellate Court Is
Not Required To Apply New Test Of Determining Criminal Responsibility Under
"Mental Disorder" Definition And Provision Established By New Act Which Became
The Law After Accused's Trial And Now In Effect At Time Of Review -- In Instant
Case Former Test Of Determining Criminal Responsibility Being Proper One
Applied Below Was Proper One To Be Applied On Appeal, There Being No
Constitutional Provision Either Requiring Or Prohibiting Retroactivity Of
Statute In Question.

Murder -- Criminal Agency -- Circumstantial Evidence
-- Sufficiency -- In Determining Guilt Test For Sufficiency Is Same Whether
Evidence Be Direct, Circumstantial, Or Provided By Rational Inferences Therefrom
[***2] -- Upon Review Of Trial Transcript Appellate Court Found That Evidence
Was Sufficient In Law, For It Either Showed Directly Or Supported A Rational
Inference Of The Facts To Be Proved From Which The Jury Could Be Properly
Convinced, Beyond A Reasonable Doubt, Of Accused's Guilt Of Murder As Charged
-- Lower Court Did Not Err In Denying Motion For Judgment Of Acquittal With
Respect To Criminal Agency Of Accused.

Criminal Law -- Instructions To Jury -- Murder-Felony
In Commission Of Or Attempt To Rape -- Challenge -- Plain Error -- Although
No Challenge Was Made To Court's Instructions On Rape And Attempted Rape
In Murder Trial And While Accused May Not Assign Error On Appeal, There Was
No Clear Error Material To Rights Of Accused In Instruction That Under
Felony-Murder Statute A Murder Committed In A Rape Or Attempt To Rape Is
Murder In First Degree In Light Of Medical Evidence That The Victim Was Sexually
Molested -- Evidence Was Legally Sufficient For Jury To Find That The Murder
In Instant Case Was Committed In Perpetration Of A Rape Or Attempted Rape
And Trial Court Was Not In Error In Denying A Motion For Judgment Of Acquittal
At Close Of All Evidence.

Criminal Law -- [***3] Instructions To Jury -- Advisory
-- Insanity -- Jury As Judges Of Law And Facts -- Supplemental Instruction
-- Exceptions -- Maryland Rule 756 -- Plain Error -- There Being No Objection
To Supplementary Instruction Error May Not Be Assigned As Of Right -- In
Present Case There Was No Clear Error Material To Rights Of Accused In
Supplemental Charge On Sanity Issue When Taken With Instructions As A Whole
Correctly Stated The Law -- Nothing In Record Indicated Jury Did Not Correctly
Apply The Law To Facts Of Case In Performance Of Its Duty, Nor Was There
Any Plain Error Material To Rights Of Accused For Appellate Court To Take
Cognizance Of And Correct.

SYLLABUS: Wayne Stephen Young was convicted in a jury
trial of murder in the first degree, and, from the judgment entered thereon,
he appeals.

An inhabitant of the State of Maryland, as a part of
the legacy of the common law of England bequeathed him by the People, n1
is not responsible for his criminal conduct if he was insane at the time
he committed the crime. n2 Blackstone in Chapter II of Book the Fourth of
his Commentaries on the Laws of England, speaking of persons capable of crimes,
asserts at 24, "In criminal cases, therefore, idiots and lunatics are not
chargeable for their own acts, if committed when under these incapacities;
no, not even for treason itself." n3 The "defense [*541] of insanity or lunacy
on behalf of one charged with a crime, offense or misdemeanor" received statutory
recognition in this jurisdiction in 1826. Ch. 197, § 1, Acts 1826. By
1889 the provisions of the statute were considered as having "long been part
of the law of the State." Devilbiss v. Bennett, 70 Md. 554, 556. "They provide
a mode by which lunatics, and insane persons when tried for or charged with
a commission of crime shall be humanely dealt with and treated. They recognize
the rule which prevails in all civilized nations that such unfortunate persons
ought not to be [***5] subject to the same penalties or treatment as are
justly meted out to those who are sane." Ibid.

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- - - - - - - -

n1 "We, the People of the State of Maryland, grateful
to Almighty God for our civil and religious liberty, and taking into serious
consideration the best means of establishing a good Constitution in this
State for the sure foundation and more permanent security thereof, declare:
* * * That the Inhabitants of Maryland are entitled to the Common Law of
England, * * *." Preface and Art. 5, inter alia, Declaration of Rights,
Constitution of Maryland.

n2 Historically in English law insanity was not regarded
as having any bearing upon the matter of criminal guilt and this principle,
dating prior to the Norman Conquest persisted into the thirteenth century.
"[A] man who has killed another by misadventure, though he may deserve a
pardon, is guilty of a crime, and the same rule applies * * * to a lunatic
* * *." 3 Holdsworth, History of English Law 371 (5th ed. 1942). The gradual
change in this point of view is traced by Perkins in his Criminal Law, 2nd
ed., pp. 850-852. By the time of Henry III it was not uncommon for the king
to grant a pardon as a special act of grace for one who had committed homicide
while of unsound mind, and in the reign of Edward I, although there was no
change in the theory of guilt, such a homicide was entitled to a special
verdict that the accused committed the crime while mad. This verdict practically
assured the grant of a pardon. During the reign of Edward II insanity was
beginning to be recognized as a defense to crime and in the time of Edward
III (1327-1377) absolute "madness" became a complete defense to a criminal
charge. [***6]

n3 "The second case of a deficiency in will, which
excuses from the guilt of crimes (the first was infancy or nonage) arises
also from a defective or vitiated understanding, viz., in an idiot or a lunatic.
For the rule of law as to the latter, which may easily be adapted also to
the former, is that 'furiosus furore solum punitur.'" Ibid.

- - - - - - - - - - - - End Footnotes- - - - - - -
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The kind and degree of unsoundness of mind could not
be determined as a matter of law before pardons were issued as a matter of
course upon a verdict that the accused committed the crime while mad, for
prior thereto all depended upon the king's "grace." 2 Pollock & Maitland,
484 (2d ed. 1899). When the law began to notice insanity as a defense, Bracton,
Chief Justiciary in the middle of the thirteenth century, defined a madman
as "one who does not know what he is doing, who lacks in mind and reason
and is not far removed from the brutes." n4 Twenty-five years after Coke
quoted Bracton's definition in Beverley's Case, he classified non compos
mentis into the born idiot, the madman -- one who "wholly loseth his memorie
and understanding," and the [***7] lunatic -- one who has lucid intervals
but is non compos mentis during periods when "he hath not understanding."
[**201] 2 Co. Litt. 247 a (Rev. ed. 1823) as cited in Perkins, supra, at
851. In any event, it was in 1843 in Daniel M'Naghten's Case, 10 Clark &
Fin. 200, 8 Eng. Rep. 718 that the law [*542] as it had been developing for
hundreds of years was crystallized. M'Naghten was tried on a charge of murdering
one Edward Drummond. Lord Chief Tindal in his charge to the jury said:

"The question to be determined is, whether at the time
the act in question was committed, the prisoner had or had not use of his
understanding, so as to know that he was doing a wrong or wicked act. If
the jurors should be of opinion that the prisoner was not sensible, at the
time he committed it, that he was violating the laws both of God and man,
then he would be entitled to a verdict in his favour: but if, on the contrary,
they were of opinion that when he committed the act he was in a sound state
of mind, then their verdict must be against him."

The jury returned a verdict of not guilty, on the ground
of insanity. The verdict and the question of the nature and extent [***8]
of the unsoundness of mind which would excuse the commission of a felony
of this sort was made the subject of debate in the House of Lords and it
was determined to take the opinion of the Judges on the law governing such
cases. Mr. Justice Maule and Lord Chief Justice Tindal appeared and answered
five questions propounded to them. The opinion of the Judges was fully approved
by the House of Lords and laid down as the settled law. It was so recognized
by our Court of Appeals in 1888 in Spencer v. State, 69 Md. 28. Its understanding
of the law as settled by M'Naghten was "that notwithstanding a party may
do an act, being in itself criminal, under the influence of an insane delusion,
with a view of redressing or revenging some supposed grievance, or injury,
or of promoting some public good, he is nevertheless punishable, if he had
the capacity to distinguish between right and wrong, and knew at the time
that he was acting contrary to law. Therefore, if the party accused be conscious
that the act was one that he ought not to do, that act being contrary to
law, he is [*543] punishable under the law." At 38. The so-called
"M'Naghten-Spencer" test of responsibility for criminal [***9] conduct came
to be expressed as whether the accused had the capacity and reason sufficient
to enable him to distinguish between right and wrong and understand the nature
and consequences of his acts as applied to himself. Bradford v. State, 234
Md. 505, 510; Dubs v. State, 2 Md. App. 524, 534. The test, although subject
to vehement criticism, withstood constant attacks on its constitutionality
and propriety. See Leland v. Oregon, 343 U.S. 790; Armstead v. State, 227
Md. 73; League v. State, 1 Md. App. 681. Both the Court of Appeals and this
Court felt that any modification of the rule was a prerogative of the legislature
and not the courts and rejected pleas to modify or abandon it. The legislature
responded in 1967. By ch. 709, Acts 1967, it supplanted the M'Naghten-Spencer
test with the American Law Institute test contained in § 4.01 of the
Model Penal Code. Codified as Code, Art. 59, § 9 (a) it provided:

"A defendant is not responsible for criminal conduct
and shall be found insane at the time of the commission of the alleged crime
if, at the time of such conduct as a result of mental disease or defect,
he lacks substantial capacity either to appreciate [***10] the criminality
of his conduct or to conform his conduct to the requirements of law. As used
in this section, the terms 'mental disease or defect' do not include an
abnormality manifested only by repeated criminal or otherwise antisocial
conduct."

The legislature did not define "mental disease or defect,"
but it did expressly exclude therefrom "an abnormality manifested only by
repeated criminal or otherwise antisocial conduct." See Avey v. State, 9
Md. App. 227, 240-241; [**202] Millard v. State, 8 Md. App. 419; Greenleaf
v. State, 7 Md. App. 575; Strawderman v. State, 4 Md. App. 689. It was careful
to spell out the applicability of the new test. It further enacted by §
2 of ch. 709 "That the provisions [*544] of this Act shall be applicable
to all cases tried or scheduled for trial on and after the effective date
of this Act." The effective date of the Act was established as 1 June 1967
by § 5. These provisions were a clear legislative expression that the
Act apply to cases tried on or after 1 June 1967, and a fortiori, not to
cases tried before 1 June 1967. We so stated in League v. State, supra, at
685. In Stokes v. State, 2 Md. [***11] App. 385, cert. den., 248 Md. 735,
we refused to depart from our holding in League in the face of the argument
that the language of § 2 did not preclude giving retroactive effect
to the Act: "that had the Legislature intended non-retroactivity, the word
'only' would have been employed," and that, therefore, the Act should be
construed as retroactive. We observed, at 387: "Such a construction, in our
opinion, is strained, sophistic, and one not intended by the Legislature."
We again affirmed our position in McCracken v. State, 2 Md. App. 716,
718.

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- - - - - - - -

n4 Perkins states this is as quoted in Beverley's Case,
4 Coke 123 b, 124 b, 76 Eng. Rep. 118, 1121 (1603). See Parker v. State,
7 Md. App. 167 for discussion of various definitions of "insanity" in the
early law.

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- - - - - - -

The new test of responsibility for criminal conduct
was in effect for three years. Then in 1970, with none of the fanfare which
surrounded the abolition of the venerable common law test, the legislature
changed the new test. It came about [***12] by the repeal "in its entirety"
of Code, Art. 59, title, "Lunatics and Insane", and the enactment to stand
in its place of a new Art. 59 under the new title "Mental Hygiene." Acts
1970, ch. 407, § 2. The test for responsibility for criminal conduct
was set out in § 25 (a) of the new Article. The test was the same as
the 1967 test with one exception; the terms "mental disease or defect" were
replaced by the term "mental disorder." This exception was of the utmost
significance, however, in the light of other provisions of the new Act. Section
3 (f) defined "mental disorder" to mean "mental illness or mental retardation
or any other form of behavioral or emotional illness resulting from any
psychiatric or neurological disorder." Section 3 (g) defined "mental illness"
to mean "any mental disorder, other than mental retardation, which so
substantially impairs the mental or emotional functioning of an individual
as to make it [*545] necessary or advisable for the welfare of the person
so suffering or for the safety of the persons or property of others that
the mentally ill person receive care and treatment." It provided further:
"The term shall replace the words 'insane,' 'insanity,' [***13] 'lunacy,'
'mentally sick,' 'mental disease,' 'unsound mind' and similar words as they
appear in the statutes of the State of Maryland but does not include mental
retardation." Section 3 (h) defined "mental retardation" to mean "a degree
of subnormality of intellectual development expected to be of life duration
which reduces the individual's capability to manage himself or his affairs."
It provided further: "The term shall replace the terms 'defective,' 'mental
defective,' 'idiot,' 'feebleminded' and 'moron' as they may appear in the
statutes of the State of Maryland." We see nothing in § 25 (a) to indicate
that the term "mental disorder" was clearly intended to have a different
meaning than as defined in § 3. n5

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- - - - - - - -

n5 Section 3 entitled "Definitions" begins: "As used
in this Article, the following terms shall have the meanings indicated unless
a contrary meaning is clearly intended from the context in which the term
appears: * * *."

"A defendant is not responsible for criminal conduct
and shall be found insane at the time of the commission of the alleged crime
if, at the time of such conduct as a result of mental disorder, he lacks
substantial capacity either to appreciate [**203] the criminality of his
conduct or to conform his conduct to the requirements of law. As used in
this section, the terms 'mental disorder' do not include an abnormality
manifested only by repeated criminal or otherwise antisocial conduct."

Applying the meaning of "mental disorder" and the meanings
of the terms used in defining its meaning as set out in § 3, the test
reads:

A defendant is not responsible for criminal [*546]
conduct and shall be found insane at the time of the commission of the alleged
crime, if at the time of such conduct he lacks substantial capacity either
to appreciate the criminality of his conduct or to conform his conduct to
the requirements of law, because of:

(1) any mental disorder which so substantially impaired
his mental or emotional functioning as to make it necessary or advisable
for his welfare or for the safety of the persons or property of others that
he [***15] receive care and treatment; OR

(2) a degree of subnormality of intellectual development
expected to be of life duration which reduced his capability to manage himself
or his affairs; OR

(3) any other form of behavioral or emotional illness,
which, as to any of the three, were the result of any psychiatric or neurological
disorder other than an abnormality manifested only by repeated criminal or
otherwise antisocial conduct.

We summarized the procedure in applying the test in
Sherrill v. State, 14 Md. App. 146, after finding it clear that the change
in the criminal responsibility test was intended by the legislature to be
one of substance and not merely one of form: n6 "Thus, under the Section
25 [*547] (a) test of criminal responsibility, recognizing that an abnormality
manifested only by repeated criminal or antisocial conduct cannot qualify
as a 'mental disorder,' psychiatrists would first be asked the threshold
question -- whether the accused, at the time of the crime, had a mental disorder,
i.e., a 'mental illness or mental retardation or any other form of behavioral
or emotional illness'; if so, is it the result of 'any psychiatric or
neurological [***16] disorder', and, if so, did it cause the accused to lack
substantial [**204] capacity either to appreciate the criminality of his
conduct or to conform his conduct to the requirements of law."

- - - - - - - - - - - - - - Footnotes - - - - - - -
- - - - - - - -

n6 We said, at 155: "Considering the broad but precise
legislative meaning given the term 'mental disorder' by Section 3 (f) in
juxtaposition with the undefined term 'mental disease or defect,' formerly
contained in Section 9 (a), it is readily evident that the Legislature intended
more than a simple substitution of terms commonly understood by psychiatrists,
lawyers, and judges as having the same or equivalent meaning. Indeed, as
illustrated by the testimony in the present case, there was a considerable
conflict of expert opinion among the testifying psychiatrists with respect
to whether appellant's mental condition, which was variously labeled a psychosis,
a neurosis, schizophrenia, pedophilia, a character disorder, and a personality
disorder, rose to the level of a 'mental disease or defect' within the ambit
of Section 9 (a), or was merely one of a multitude of mental disorders recognized
and classified within the Diagnostic and Statistical Manual of Mental Disorders,
the so-called psychiatrist's bible, published by the American Psychiatric
Association. Some of the psychiatrists saw no difference between a 'mental
disease' and a 'mental disorder'; others thought there was a difference.
Some of the psychiatrists believed that pedophilia was both a mental disease
or defect and a mental disorder; others seemed uncertain as to whether it
was a mental disease. One of the State's psychiatrists believed that pedophilia
was not a mental disease or defect under Section 9 (a); that only a psychosis
could qualify as a mental disease and that since pedophilia was not a psychosis,
it could not be a mental disease, although it could be a mental
disorder.

We think it not unlikely that it was because of the
wide differences of opinion among psychiatrists respecting interpretation
of the term 'mental disease or defect,' as used in Section 9 (a), that the
Legislature determined to make use of a more concrete standard that all alike
could understand and uniformly apply."

Unlike ch. 709, Acts 1967, replacing the M'Naghten-Spencer
test with the "mental disease or defect" test, ch. 407, Acts 1970, contained
no express provision with regard to the application of the Act within the
frame of reference of cases. Section 4 of the Act merely prescribed "That
this Act shall take effect on July 1, 1970." The Act was approved 28 April
1970.

It was inevitable that questions arise as to the
application of the Act, spurred by the variety of degrees of retroactivity
enunciated from time to time by the Supreme Court of the United States with
respect to the application of principles and rules of law announced in its
judicial opinions in criminal causes. See State v. Campbell & Reeves,
7 Md. App. 538, 542-549 (concurring [*548] opinion). Defendants interposing
the defense of insanity will, for obvious reasons, be anxious to have the
issue determined under the "mental disorder" test and when the crime alleged
was committed before 1 July 1970 will not only urge a retroactive application
of the new test but will seek to apply that particular degree of retroactivity
most favorable to them. We had the first of such cases before us in Sherrill
v. State, supra; [***18] we have the second before us now.

Sherrill was indicted on 2 June 1970 for a crime committed
on 26 September 1969. He pleaded insanity on 19 June 1970 and was referred
for evaluation on 26 June. The report of the Perkins State Hospital was filed
on 27 August. The medical staff found that he was responsible for his criminal
conduct under the "mental disease or defect" test. Sherrill's trial began
on 27 October 1970 before three judges. Two of them found he was sane and
one thought that he was insane. Each made his finding under the "mental disease
or defect" test. We found this to be error. We pointed out that "[n]o savings
clause was included in Chapter 407 extending the operative effect of the
'mental disease or defect' standard formerly contained in Section 9 (a) beyond
the effective date of the new Act so as to make it applicable in the post
July 1, 1970 trial of cases which involved criminal conduct perpetrated prior
to that date." We otherwise found nothing in the provisions of ch. 407 even
remotely indicating a legislative intention to carry over the "mental disease
or defect" standard to govern the merits of insanity pleas asserted at trials
commencing after 1 July [***19] 1970. n7 And we did not believe that the
general savings [*549] statute, Code, Art. 1, § 3 would make §
25 (a) apply to cases tried after 1 July 1970. n8

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- - - - - - - -

n7 We explained, at 154: "The fact that under Section
25 (a), as under former Section 9 (a), the validity of an accused's insanity
plea is to be adjudged with reference to his mental condition as it existed
at the time the criminal act was committed does not mean that the test for
criminal responsibility in effect at that time is controlling. The defense
of insanity at the time of the commission of the crime takes on substance
and becomes truly meaningful when the case is tried, its merits placed in
issue and decided. We think it clear that the Legislature, in repealing Section
9 (a), and its undefined 'mental disease or defect' standard, and in enacting
in its place the carefully defined 'mental disorder' standard in Section
25 (a), intended that the latter test would govern in all cases tried after
July 1, 1970, regardless of when the offense was committed. Cf. Janda v.
General Motors Corp., 237 Md. 161; Wittel v. Baker, 10 Md. App. 531. To otherwise
conclude would be to ascribe to the Legislature an intention to have two
separate tests for criminal responsibility in effect at the same time, based
on the insignificant criterion of when the criminal act was committed. Had
the Legislature so intended, it would not, in our view, have made Chapter
407 effective July 1, 1970, without expressly including in the Act a savings
clause or like provision to indicate such an intention." [***20]

n8 Insofar as pertinent, Code, Art. 1, § 3
provides:

"The repeal, or the repeal and reenactment, or the
revision, amendment or consolidation of any statute, or of any section, or
part of a section of any statute, civil or criminal, shall not have the effect
to release, extinguish, alter, modify or change, in whole or in part, any
penalty, forfeiture, or liability, either civil or criminal, which shall
have been incurred * * * [thereunder] unless the repealing, repealing and
reenacting, revising, amending or consolidating act shall expressly so provide;
* * *." (Emphasis added)

We said in Sherrill, at 154: "In the sense contemplated
by this statute, a 'penalty, forfeiture, or liability' is, we think, something
in the nature of a criminal or civil sanction actually incurred by reason
of the statute's operative provisions. See Bell v. State, 236 Md. 356; Brooks
v. State Board, 233 Md. 98; State v. Kennerly, 204 Md. 412; State v. Clifton,
177 Md. 572; Green v. State, 170 Md. 134. See also Bell v. Maryland, 378
U.S. 226 (footnote 4), at page 234. The defense of insanity in criminal cases
is not, in our opinion, either a 'penalty, forfeiture, or liability', actually
incurred, within the meaning of Section 3 or the Maryland cases construing
that statute."

[**205] In the case here reviewed, WAYNE STEPHEN YOUNG
was indicted on 3 October 1969 for crimes committed on 29 September 1969.
He pleaded insanity on 8 October. The resulting examinations of him with
regard to his responsibility were clearly under the "mental disease or defect"
standard. The indictment charging that he "feloniously, wilfully and of
deliberate and premeditated malice aforethought, did kill and murder one
Esther Lebowitz" came on for trial on 29 April 1970 before a jury in the
Criminal Court of Baltimore under the special plea of insanity and the general
plea of not guilty. n9 [*550] The issue of Young's sanity vel non was submitted
to the jury, see Strawderman v. State, 4 Md. App. 689, framed as
follows:

"At the time of the alleged crime on September 29,
1969, did the defendant, Wayne Stephen Young, as a result of mental disease
or defect, lack substantial capacity either to appreciate the criminality
of his conduct or to conform his conduct to the requirements of the
law?"

The verdicts of the jury were rendered on 5 May 1970.
The jury found him responsible for his criminal conduct at the time of the
commission of the murder (they [***22] answered "No" to the issue as framed),
and guilty of murder in the first degree. Sentence was deferred pending the
filing of a motion for a new trial. The motion was timely filed, heard on
12 November and denied. Thereupon, on that date, the judge imposed sentence:
"I commit Wayne Stephen Young to the jurisdiction of the Department of
Correctional Services for the balance of his natural life, beginning from
the date of arrest * * * October 2, 1969."

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- - - - - - - -

n9 On 29 April 1970 the State called for trial both
the murder indictment and an indictment charging the rape of Esther Lebowitz.
A third indictment charging larceny returned against Young was not called.
Young prayed a jury trial on the murder indictment and a court trial on the
rape indictment. The State elected to proceed with the murder
indictment.

- - - - - - - - - - - - End Footnotes- - - - - - -
- - - - - - -

In the case before us, as in Sherrill's case, the crime
was committed, the accused was indicted, and the evaluation of his sanity
was ordered before 1 July 1970, the effective date of ch. 407, Acts 1970.
The [***23] difference between the two cases, in this context, is that the
guilt stage of Young's trial began and concluded prior to 1 July 1970 while
Sherrill's trial did not begin until after that date. As to Sherrill there
was no question but that the mental disorder test was in effect at the time
of his trial; as to Young, there was no question but that the mental disease
or defect test was in effect at the time of his trial. In Sherrill the question
was whether the legislature intended the former mental disease or defect
test to apply when the crime involved was committed prior to 1 July 1970
regardless of when the trial for that crime was had. As pointed out above,
we concluded that such was not its intention. [**206] We found the intent
to be, [*551] and so held, that the new mental disorder test was applicable
in all cases in which the trial commenced on or after 1 July 1970. Thus,
with respect to the applicability of the mental disorder test, we have adopted
a standard comparable to that established by Johnson v. New Jersey, 384 U.S.
719, for the application of the requirements of Miranda v. Arizona, 384 U.S.
436, to statements obtained within Miranda's contemplations. [***24] See
Boone v. State, 3 Md. App. 11, 31-36. The Miranda exclusionary rules apply
only to cases begun after the date of the Miranda decision; the mental disorder
test of ch. 407, Acts 1970, applies only to cases begun after the effective
date of the statute. In every case which has come before us presenting a
question of the admissibility of a statement obtained within Miranda's
contemplation we have held, following the lead of the Court of Appeals in
Westfall v. State, 243 Md. 413, 420, that the Miranda principles do not apply
when the trial of the case began before the date of the Miranda decision.
See, for example, Crumb v. State, 1 Md. App. 98; Sherrod v. State, 1 Md.
App. 433.

Young does not quarrel with the rule that generally
the mental disorder test does not apply to trials beginning before the effective
date of the Act enunciating it. But, he argues, with regard to appellate
review, the new test should apply to cases still alive on appeal on 1 July
1970, a point not presented on the facts of Sherrill. What he urges is that
with respect to the mental disorder test of responsibility for criminal conduct,
its application should follow [***25] the standard adopted by the Court of
Appeals as to the legal principle enunciated in Schowgurow v. State, 240
Md. 121. n10 We have not so applied the exclusionary [*552] rule of Miranda.
We have consistently held it to be immaterial that the case was not finally
decided because an appeal was in fact pending or because it was still within
the possibility of appeal. See Robinson v. Warden, 5 Md. App. 68. We took
the same view with respect to the application of the mental disease or defect
test. We said flatly in League v. State, supra, at 685, on citation of Johnson
v. New Jersey, supra, and Westfall v. State, supra: "Moreover, we do not
find that the administration of justice requires that the concept be given
retroactivity to cases pending on direct appeal where the trial thereof took
place prior to June 1, 1967 [the effective date of the Act prescribing the
mental disease or defect test]." We followed this finding in deciding Stokes
v. State, supra, and McCracken v. State, supra, refusing to apply the mental
disease or defect test retroactively to trials begun prior to its effective
date even though each case was pending on direct appeal on [***26] such date.
Young, intimating that we were wrong in League, exhorts us to depart from
its finding with respect to the new mental disorder test. He points out that
we observed that the facts in League would have compelled a finding that
he was sane and responsible for his acts no matter whether the new or old
test was applied. 1 Md. App. at 686.

- - - - - - - - - - - - - - Footnotes - - - - - - -
- - - - - - - -

n10 "We believe that the proper administration of justice
requires, and we accordingly hold, that the legal principle enunciated in
this case shall not apply retroactively, except for convictions which have
not become final before rendition of this opinion." 240 Md. at 131-132. This
degree of retroactivity was that enunciated in Linkletter v. Walker, 381
U.S. 618, with regard to the holding in Mapp v. Ohio, 367 U.S. 643 requiring
exclusion in state criminal trials, of evidence seized in violation of the
search and seizure provision of the 4th amendment.

- - - - - - - - - - - - End Footnotes- - - - - - -
- - - - - - -

Although we cited Johnson v. New Jersey, supra, and
Westfall v. State, supra, in League [***27] , we do not believe that the
same considerations are involved in determining the retroactivity vel non
of a judicially [**207] formulated principle or rule of law as are involved
in determining the retroactivity vel non of a legislative enactment. As to
the former, the criteria guiding resolution of the retroactivity or
non-retroactivity (and if retroactive, the degree thereof) of decisions
expounding new constitutional rules affecting criminal trials implicate the
purpose to be served by the new standards, the extent of the reliance by
law enforcement authorities on the old standards, and the effect on the
administration of justice of a retroactive application of the new standards.
Desist v. United States, [*553] 89 S. Ct. 1030; Stovall v. Denno, 388 U.S.
293; Scott v. State, 7 Md. App. 505. And the question is properly to be resolved
by the courts. But as to statutes, it is the intent of the legislature in
enacting the law which controls. We made this clear in McCracken v. State,
supra, at 718, in applying the League holding. So the question with respect
to statutes is actually resolved by the Legislature, and the courts' function
goes only [***28] to a determination, when such is necessary, of the legislative
intent. See Limitation of New Judge -- Made Law to Prospective Effect Only;
"Prospective Overruling" or "Sunbursting", by Thomas E. Fairchild, 51 Marquette
Law Review 254-270 (1967-1968); The Control of "Sunbursts": Techniques of
Prospective Overruling, by Walter E. Schaefer, 42 New York University Law
Review 631-646 (1967).

Young relies primarily for support of his position
that his responsibility should be judged under the mental disorder test,
on what he alleges is Maryland's recognition that under its common law an
appellate court applies the law in effect at the time of its decision even
though the law was different at the time of the trial below. Bell v. State,
236 Md. 356, bespoke of the rule, but in terms of the repeal of a criminal
offense, directly or by implication. The Court said, at 363:

"It is clear that the common law of Maryland is that
the repeal of a statute creating a criminal offense, after conviction under
the statute but before final judgment, including the final judgment of the
highest court empowered to review the conviction, requires reversal of the
judgment, because the decision [***29] must accord with the law as it is
at the time of final judgment * * *; and the general rule would seem to be
the same * * *." (citations omitted)

It was this rule which apparently prompted the enactment
of savings clauses which now comprise the substance of Code, Art. 1, §
3. n11 That section provides that [*554] in the absence of an express provision
to the contrary, no penalty, forfeiture or liability, either civil or criminal,
shall be released, extinguished, altered, modified or changed, in whole or
in part, by the repeal of any statute. We think, as we stated in Sherrill,
see note 8 supra, that a "penalty, forfeiture, or liability" within the
contemplation of the statute was "something in the nature of a criminal or
civil sanction actually incurred by reason of the statute's operative
provisions." We felt that the defense of insanity in criminal cases was not
a "penalty, forfeiture, or liability, actually incurred, within the meaning
of Section 3 or the Maryland cases construing that statute." For reasons
like those leading to the conclusion that the statute preventing the application
of the common law rule does not encompass the defense of insanity in criminal
[***30] cases, we believe that the rule itself as articulated in Bell does
not encompass the defense of insanity in criminal cases. There was no criminal
offense created [**208] by ch. 709, Acts 1967, which was repealed by ch.
407, Acts 1970. Bell v. Maryland, 378 U.S. 226, does not lead to a different
conclusion. Bell v. State, 236 Md. 356, above discussed, rendered on remand
from the Supreme Court Bell, was aso decided, of course, in the context of
the repeal of a criminal offense, as were the cases relied on therein, namely
Smith v. State, 45 Md. 49, Beard v. State, 74 Md. 130, State v. Gambrill,
115 Md. 506, and State v. Clifton, 177 Md. 572. Nor do we find that the other
cases cited by Young support his position that his responsibility must be
determined by the test now in effect rather than by the test in effect at
the time of his trial. They recite the general proposition that "an appellate
court is bound to decide a case according to existing laws, even though a
judgment rightful when rendered by the court below should be reversed as
a consequence." Woman's Club v. State Tax Comm., 195 Md. 16, 19. [*555] Or,
put another way, "a change [***31] in the law after a decision below and
before final decision by the appellate court will be applied by that court
unless vested or accrued substantial rights would be disturbed or unless
the legislature shows a contrary intent." Yorkdale v. Powell, 237 Md. 121,
124. But the proposition has never been applied as Young suggests it now
be applied. We do not find the cases he cites to be apposite in fact or in
their rationale in applying the rule. n12 As set out herein, [*556] when
the legislature [**209] supplanted the M'Naghten-Spencer test with the mental
disease or defect test, the judicial construction of the intent was that
the new test did not apply to cases the trial of which began before the effective
date of the Act whether or not they had been finally decided. That construction
was enunciated almost three years before the legislature replaced the mental
disease or defect test with the mental disorder test and in those three years
has been affirmed and followed. We cannot say that the legislature was unaware
of it when ch. 407 was enacted. Even if § 25 (a) were otherwise subject
to the general rule as urged by Young we do not believe that the legislature
intended [***32] that rule to apply. We think [*557] it intended the mental
disorder test to be applied in the same manner as the mental disease or defect
test had been applied. We think that by merely designating the effective
date of ch. 407 without further qualification the legislature intended that
persons whose trial on a criminal charge began before that date be responsible
vel non for their criminal conduct under the mental disease or defect test
and that the test being the proper one to be applied below, it was the proper
one to be applied on appeal. In so concluding we observe that there is no
constitutional provision either requiring or prohibiting retroactivity in
this regard. Hammer v. State, 3 Md. App. 96.

- - - - - - - - - - - - - - Footnotes - - - - - - -
- - - - - - - -

n11 In State v. Gambrill, 115 Md. 506 (1911), the Court
said, at 513, "* * * after the repeal of a law no penalty can be enforced
nor punishment imposed for its violation, when in force, without a savings
clause in the repealing statute * * *." The legislature passed two general
savings clauses, chs. 120 and 365, Acts 1912.

n12 In Atwell v. Grant, 11 Md. 101 the question was
whether a promissory note not stamped as required by law was admissible in
a suit for its payment. Subsequent to trial and prior to review on appeal
the law requiring notes to be stamped was repealed. The Court held the decision
below overruling objection to the note's admission could not be reversed
because of the repeal but was careful to point out that the repealing act
provided that all notes drawn prior to the repeal "shall be as good and valid
as though they had been stamped, and all debts that have been created, where
the proper vouchers are shown, shall be as valid in law as though the Stamp
Act had never been passed."

As we read State v. Norwood, 12 Md. 177 the question
was not the effect of a repeal of a law between the time the case below was
decided and the appellate review, but whether the Clerk of the Common Pleas
of Baltimore City was bound to collect and pay over monies collected by him
for ordinary licenses. The court found that the law did not oblige him to
do so.

The question in Day v. Day, 22 Md. 530 was whether
a patent should issue. The Court said the determination of the question did
not rest on the proceedings had in any given case alone, but on the further
fact that the land for which a patent is sought, may by law be granted in
that mode, when the question as to the issue of the patent comes to be finally
adjudicated. At 538-539. The proceedings in the case, up to and including
the appeal, were taken before an act was passed prohibiting the issue of
the patent. But the Court found there was no interest vested in the claimant
to except his case from the operation of the act and held that the patent
should not issue. At 539-540.

Price v. Nesbitt, 29 Md. 263 involved the right to
removal of causes, enlarged by constitutional provision. The general rule
was invoked to comply with the constitutional mandate.

In Wade v. St. Mary's Indust. School, 43 Md. 178,
proceedings to construct and open an avenue as a public highway were commenced
and were being carried on under the provisions of a public local law. That
law was wholly repealed and a law enacted adopting a totally different mode
for the opening of streets. The repealing law contained no savings clause
in favor of proceedings which were in fieri and incomplete under the former
law. Thus the county road supervisors, appealing from the lower court decision
making perpetual a preliminary injunction to restrain them from constructing
the road, were without authority of any law then existing to proceed in the
manner complained of to construct the road. The court affirmed the decree,
stating: "It is settled doctrine, that courts in deciding questions arising
before them, will look to the law as it is at the time, and are not to be
governed by what it may have been -- unless proceedings under a prior existing
law had been complete, or rights had become vested." At 181.

Montague v. State, 54 Md. 481 concerned the payment
of inheritance taxes. An act changing the law became effective pending an
appeal but it provided "that this Act shall take effect immediately after
its passage, and shall apply to all cases of collateral inheritance tax
heretofore claimed of, but not actually paid by, the husband of any decedent."
At 484. The decision turned on this language.

In Turner v. Bryan, 83 Md. 373 it appeared that pending
an appeal from an order dismissing Turner's petition to be reinstated as
a voter after his name had been stricken from the rolls, the law relating
to elections was repealed and an entire new system adopted, making a new
registration necessary. Thus, the Court of Appeals said, Turner was not injured
by the lower court's action and it was unnecessary for it to pass upon the
questions presented by the appeal, which it thereupon dismissed. In Meloy
v. Scott, 83 Md. 375 on similar facts the result was the same and for the
same reasons.

In C. & O. Canal v. West. Md. R. Co., 99 Md. 570,
the Court said that in arriving at its conclusion it must take into consideration
an Act relating to the rights under review even though it was enacted since
the date of the decree appealed from. The Act authorized a condemnation of
property of the Canal Company in which the State was financially interested
as mortgagee or otherwise, referred to the action of the Board of Public
Works approving plans submitted regarding bridges over the canal and required
a plat of the railroad to be filed with the Secretary of State. But the Court
found that the order appealed from was "merely modal in its nature and did
not affect any substantial rights," observing that such orders were common
and the leave of the Court which they afforded was ordinarily granted as
a matter of course. At 576-577.

Yorkdale v. Powell, supra, concerned the application
of the general rule to a zoning case. The Court found that an amendment in
the law enacted while the case was pending on appeal made the main issue
moot and dismissed the appeal.

Young questions the sufficiency of the evidence to
sustain his conviction. The question is before us on the denial of a motion
for judgment of acquittal made at the close of all the evidence. Rule 755
b; Williams v. State, 5 Md. App. 450. As presented and argued the contention
is limited; it goes only to Young's criminal agency and not to the corpus
delicti, and, in claiming that the evidence was not sufficient to establish
that he was the murderer Young relies on the "circumstantial evidence rule"
as set out in Vincent v. State, 220 Md. 232. It appears, and we so gathered
from oral argument, that Young concedes that under the usual test as set
out in Williams v. State, supra, the evidence was properly submitted to the
jury. But he maintains that the evidence as to his criminal agency was solely
circumstantial and therefore "the circumstances, taken together, must be
inconsistent with, or such as to exclude every reasonable [**210] hypothesis
or theory of innocence." He urges that the evidence did not meet this stricter
test and mentions "a few of the theories of innocence which might reasonably
flow from the circumstances adduced," asserting "and [***34] many more plausible
than these would be quite evident" if the facts were reviewed under a burden
imposed on the State that "the circumstances were so strong that they exclude
any reasonable chance of defendant's innocence." [*558] We discussed the
so-called circumstantial evidence rule at length in Nichols v. State, 5 Md.
App. 340, indicating that perhaps it did not mean precisely what it appeared
to say. In Metz v. State, 9 Md. App. 15, 23 we said flatly that "* * * the
test for sufficiency is the same whether the evidence be direct, circumstantial,
or provided by rational inferences therefrom." In Streat v. State, 11 Md.
App. 543, 547 we noted that in applying the sufficiency of the evidence rule
as set out in Williams "no distinction is made between a case where there
is direct evidence of guilt and a case where the evidence is circumstantial."
And in Graham v. State, 13 Md. 171, 178 we observed that the statement that
for evidence solely circumstantial to be sufficient to convict, the
circumstances, taken together, must be inconsistent with, or such as to exclude
every reasonable hypothesis or theory of innocence, does not accurately reflect
the law, pointing [***35] to Metz and Streat. So even if the evidence as
to Young's criminal agency were solely circumstantial, and we do not think
it was, we find on our review of the transcript of the trial that the evidence
adduced was sufficient in law, for it either showed directly or supported
a rational inference of the facts to be proved, from which the jury could
be properly convinced, beyond a reasonable doubt, of Young's guilt of the
offense charged. We note that psychiatrists who testified on behalf of Young
recounted what were admissions by Young of his criminal agency. For example,
Dr. William N. Fitzpatrick, called by the defense, in discussing Young's
responsibility for his criminal conduct said that Young "readily" confessed
to the crime. Reading from his report of his examination of Young, the Doctor
said: "The defendant oblivious to anything except a powerful impulse to hit
[the victim] about the head, picked up a hammer and hit her repeatedly. No
one else was around, and he struck her until she died."

We hold that the lower court did not err in denying
the motion for judgment of acquittal with respect to the criminal agency
of Young.

[*559] III

At the close [***36] of all the evidence defense counsel
n13 made, in addition to a motion for judgment of acquittal "on the ground
that the State has not produced sufficient evidence to justify a conviction"
under the indictment, a motion "for a verdict of acquittal and finding of
not guilty on the indictment charging murder under the philosophy of murder
perpetrated in the course of the commission of a felony, or an attempt to
commit any of the felonies or crimes enunciated in the statute under the
headings of attempted felonies." n14 The court denied the motion.

- - - - - - - - - - - - - - Footnotes - - - - - - -
- - - - - - - -

n13 Not the same counsel representing Young on this
appeal.

n14 Code, Art. 27, § 410 provided: "All murder
which shall be committed in the perpetration of, or attempt to perpetrate,
any rape, sodomy, mayhem, robbery, burglary, or in the escape or attempt
to escape from the Maryland Penitentiary, the house of correction, the Baltimore
City jail, or from any jail or penal institution in any of the counties of
this State, shall be murder in the first degree."

Chapter 326, § 1, Acts 1970, added the crimes
of kidnapping, storehouse breaking and daytime housebreaking. By § 2
of the Act the amendment shall not apply to or affect the prosecution of
any act or criminal offense occurring prior to 1 July 1970.

Young now complains because the jury were allowed to
consider the degree [**211] of murder not only within the frame of reference
that it was a willful, deliberate and premeditated killing, Code, Art. 27,
§ 407, but that it was a murder within the ambit of § 410, the
so-called "murder-felony statute." As proof that the jury were permitted
to do this he points to the instructions in which the court explained the
State's theory that the homicide was murder in the first degree as a felony
murder. It read to the jury part of § 410, confining however, the crime
perpetrated or attempted, to rape, and then discussed the crime of rape and
attempted rape, pointing out that consent was not involved as the victim
was only eleven years of age. The transcript of the proceedings does not
disclose that challenge was made to these instructions. Rule 756 f. In fact
at one point during a discussion of the statute pertaining to criminal
responsibility, defense counsel said: "I don't think the jury [*560] can
ignore the felony statute." Thus, Young may not assign error in this part
of the charge as of right. Rule 756 g. Nor do we find it to be plain error
material to Young's rights. [***38] Young's point is that the State did not
establish that the victim had been penetrated by a male sexual organ or even
that the injuries in her vaginal area occurred while she was living. We do
not believe that the evidence adduced must be construed so narrowly.

The body of the victim was found in a wooded area.
Sergeant Robert DePaula of the Homicide Squad of the Baltimore City Police
went to the area. "[T]he body was in a gully off the side of the road. The
body was dressed in garb that was identical with the garb of the Lebowitz
child was reported missing in. Her clothes were disarranged. She was
spread-eagle, more or less, in the gully, and her pants were down around
one ankle." The police roped off the area and called for a Medical Examiner.
"We wanted an investigation on the scene." Photographs of the child as she
was found show her naked from the waist down, her clothing bunched up around
her waist and her underclothes around her ankles. The external description
of the body given by the Medical Examiner was that a jumper was "bunched
up over the waist. Panties and a white garter belt had been pulled down to
the level of the ankles as have her nylon stockings." The [***39] autopsy
report gave the evidence of trauma. In addition to extensive trauma of the
head and neck and injuries to the left buttocks, left thigh, right ankle
and right hand, there was trauma as to the vagina:

"The external genitalia show no evidence of injury.
The labia majora and labia minora are free of injury. The hymen, however,
is torn in all quadrants and shows fresh hemorrhage. In addition the posterior
fourchette of the vagina is also torn and contains fresh hemorrhage. The
wound in the fourchette measures 1/2'' in length. The vagina contains fresh
hemorrhage. Examination of smears from the vagina, however, show no
spermatozoa."

[*561] The diagnoses included "Recent lacerations of
hymen and posterior fourchette of vagina." It was the medical opinion that
"this 11 year old white female, Esther Lebowitz, died of head injuries which
were the result of blows to the head. Lacerations to the vagina indicate
that the victim was sexually molested." At the trial the Medical Examiner
testified that the victim "had a laceration of the hymen and the posterior
fourchette. This is the tissue around the vagina." He explained that the
hymen is "at the opening of the [***40] vagina * * * the hymen is actually
the covering; it's right on the surface, but it's covered by the folds, what
they call the labia major, the lips of the vagina. So, in that sense, * *
* it's inside [the vagina]." He said that some object would have had to penetrate
the lips of the vagina in order to have caused the injury to the hymen. He
described the fourchette of the vagina as "the portion of the posterior,
where the labia and the hyman come together. It's an anatomical point. It's
the posterior-most portion of the vagina." The injury to it [**212] would
require some penetration of the lips of the vagina. On cross-examination
he was asked: "Would the injuries to the vaginal area and hymen be consistent
with a finger manipulation, Doctor, as well as with the injection of an erect
penis, or thirdly with a foreign substance of some object of some kind?"
His reply was: "Presumably, all three." He could not say "positively that
it was a penis."

In the light of this evidence we do not see clear error
material to Young's rights in instructing the jury that under the felony-murder
statute a murder committed in the perpetration or attempt to perpetrate a
rape is murder in the [***41] first degree. And we hold that, within the
frame of reference of that statute, there was no error in denying the motion
for judgment of acquittal. We believe the evidence was legally sufficient
for the jury to find that the murder was committed in the perpetration of
a rape or attempted rape. We find Middleton v. State, 6 Md. App. 380 to be
factually apposite, its rationale appropriate and its holding
controlling.

[*562] We note that the court below instructed the
jury also with regard to murder in the first degree by reason of a wilful,
premeditated and deliberate act under Art. 27, § 407. Young does not
argue that the evidence as to this was not sufficient to go to the jury.
In fact, it is quite evident from the transcript of the proceedings that
it was not the strategy of the trial to attempt to establish that Young did
not murder the child, but rather it was to show that he was not legally
responsible for the murder. The trial tactics pursued were clearly in furtherance
of this strategy.

IV

As the judge started his charge he cautioned the jury
that "any remarks that I may make, any instructions that I may give you,
are only advisory. You may accept them, [***42] or you may reject them. That's
particularly true in Maryland, where you are the judges of the law and the
facts, which I shall discuss a little later on. So, I repeat, my instructions
are purely advisory." A little later he elaborated on his statement that
the jury were the judges of the law and the facts:

"Now, that doesn't mean that there is no law that covers
the given situation. There is a law in this state, as far as I know in all
states, that says it's a violation of the law to commit murder. But, when
I say that you are the judges of the law as well as of the facts, I simply
mean to say that you have a right to say to the court by your decision, well,
that might be the law, it might be the statute involved in the case, but
it's not the law of this case; we don't think it applies, and you don't apply
it. In other words, you have a right, really, to ignore and determine for
yourself what the law of the case really is, consistent, of course, with
your oath of office to well and truly try the case, hear the evidence in
the case and return a verdict in accordance with the facts."

[*563] Later he discussed the sanity issue. He read
the applicable part of Art. [***43] 59, § 9

(a). He explained:

"The law does not attempt to say what failures or
conditions of the mind are properly to be regarded as disease or defect;
rather, it leaves that judgment to the triers of the facts, in this case,
you as the jury sitting in this case, to determine on the evidence before
you, including, of course, the testimony and opinions of the medical experts,
of all the witnesses, upon the issue."

Near the conclusion of his charge, in discussing possible
verdicts, he said:

"[Y]our first issue that you must determine is this
question of responsibility, capacity, insanity, sanity, all of which you,
the answer which you will answer yes or no. If you determine then by that
issue that Mr. Young did not lack capacity or substantial capacity as the
[**213] statute says, and have continued on with your deliberation, then
you will have five possible verdicts to consider.

He told the jury what the five possible verdicts
were.

Out of the presence of the jury, defense counsel excepted
to that part of the charge in which the judge, discussing the jury being
the judge of both law and fact, said that the jury had "a right to say to
the Court by your [***44] decision, well, that might be the law, it might
be the statute involved in the case, but it's not the law of this case; we
don't think it applies, and you don't apply it." Counsel took issue to the
phrase "we don't think it applies." He excepted to any theory given to the
jury that they can ignore the statute, Article 59, § 9. The judge said
he did not mean that. Counsel interpreted the court's remarks to suggest
to the jury that they "can ignore a statute * * * that is the very heart
of the defense, or the defendant's case here" and he thought this was [*564]
broader than the court intended it to be. The judge reiterated: "I don't
mean that like that." He said: "They are bound by Article 59. * * * They
can't ignore that definition. * * * They don't ignore, but they don't have
to apply it. That's what I've said." The State disagreed that "there is any
difference in the application of the jury being judges of the law and facts
as to Article 27 and Article 59. There is absolutely no difference between
the two." The judge said:

"I think the one is talking about a crime, whether
certain facts constitute a crime. When you are dealing with situations involving
the crime [***45] itself, they do have the right to say, to ignore it and
say that is not the law of this case, but here we are talking about a definition
the State had adopted whether, the determination of this sanity. They can't
ignore that. You agree; is that your theory?"

Defense counsel agreed that it was his theory.

The judge said he would straighten it out. He did so
by a further charge to the jury:

"Members of the jury, I just want to clarify one particular
situation, really. I think, well, I am not sure whether I made it clear to
you or not. I told you in the beginning that you are the judges of the law
and the facts, but you don't overlook the fact or ignore the fact that you
do have laws that relate to many situations. For instance, murder, but what
I told you, in effect, or intended to, that you are not bound to accept the
particular law or statute as the law of any given case. You have a right
to say under the facts of this case, this statute, this law, which you say
is on the statute books does not apply. You have a right to say that. I did
not intend, however, for that to mean that you could ignore the provisions
of the law which sets forth the [*565] test of [***46] responsibility for
criminal conduct. That is a definition that has been worked out and adopted
by our state, that you accept that definition, that definition as the correct
rule for the determination of this question of responsibility.

The facts, of course, you will have to determine for
yourselves, and apply them to the rule that has been read to you and given
you verbally any number of times."

No exception was taken to the supplementary
instructions.

Having prevailed upon the judge below to give an
instruction as he desired, on appeal Young claims the judge erred in so doing.
He now construes the supplementary charge as telling the jury that they were
not the judge of the law as it pertains to responsibility for criminal conduct
but were bound by the statutory definition and that such definition could
not be disregarded in arriving at a [**214] verdict. n15 Here again, there
being no objection to the supplementary instruction as provided by §
f of Rule 756, Young may not assign error as of right. Rule 756 g. We see
no clear error material to Young's rights in the supplemental charge,
particularly when considered with the instructions as a whole. "It is sufficient
[***47] that the instructions taken as a whole correctly stated the law."
Shotkosky v. State, 8 Md. App. 492, 509. We think they did.

- - - - - - - - - - - - - - Footnotes - - - - - - -
- - - - - - - -

n15 Counsel on appeal states in appellant's brief that
"the transcript is obviously deficient as an accurate replica of the judge's
language." But when the stenographer checked his notes at counsel's request,
he reported that the notes show only what was transcribed.

- - - - - - - - - - - - End Footnotes- - - - - - -
- - - - - - -

Art. XV, § 5 of the Maryland Constitution provides
that "[i]n the trial of all criminal cases, the Jury shall be the Judges
of Law," and Rule 756 b, implementing the provision, directs the court in
every case in which instructions are given to the jury to instruct them that
"they are the judges of the law and that the court's instructions are advisory
only." n16 In Brady v. Maryland, [*566] 373 U.S. 83, 89 the Supreme Court
said: "But Maryland's constitutional provision making the jury in criminal
cases 'the Judges of Law' does not mean precisely what it seems to say" and
referred in note 3 to Dennis, Maryland's [***48] Antique Constitutional Thorn,
92 U. of Pa. L. Rev. 34, 39, 43 and Prescott, Juries as Judges of the Law:
Should the Practice be Continued, 60 Md. St. Bar Assn. Rept. 246, 253-254.
In Giles v. State, 229 Md. 370, appeal dismissed, 372 U.S. 767, the Court
of Appeals observed, at 383, that the provision "has not been construed as
all inclusive, and some limitations upon its scope have been recognized ever
since its adoption." One of the limitations so recognized is that "it is
the duty of the jury to decide a case according to the established rules
of law, and if they misapply the law to the prejudice of the accused, the
trial court has the power to set aside the verdict and grant a new trial."
Id., at 384, citing Beard v. State, 71 Md. 275. n17 We feel that what the
lower court here told the jury in its instructions taken as a whole was in
effect the above limitation, that although they were the judges of law it
was their duty to decide the case according to the established law. Then
clearly within the court's advisory capacity, it told them of the established
law. We find that the instructions maintained the distinction between the
power of a jury to apply the law [***49] to the facts and the right of a
jury to determine the law as well as the facts. See Hamilton and Fletcher
v. State, 12 Md. App. 91, 98. We observe that we find nothing in the record
to indicate that the jury did not correctly apply the law to the facts in
the performance of its constitutional duty. We hold there was no plain error
material to Young's rights for us "to take cognizance of and correct." Rule
756 g.

- - - - - - - - - - - - - - Footnotes - - - - - - -
- - - - - - - -

n16 Rule 739 b, before it was revised and renumbered
Rule 756 b effective 1 January 1962 provided that the jury should be told
that it was the final judge of the law. (emphasis added).

n17 Another of the recognized limitations is that the
jury has no right to pass upon the constitutionality of a statute and that
it was proper for the trial court to prohibit counsel from arguing that question
before the jury. Giles at 383.

Appeal from the United States District Court for the
District of South Carolina, at Columbia. Robert W. Hemphill, District Judge.
Appeal from the United States District Court for the District of Maryland,
at Baltimore. Herbert F. Murray, District Judge.

DISPOSITION: REVERSED AND REMANDED.

COUNSEL: George Wm. Warren, IV, for Appellants in 77-1137
and 77-1194.

Because these appeals both concern the duty of a district
court to assist a pro se prisoner-litigant in presenting a claim under 42
U.S.C. § 1983, we consolidated them for briefing and argument, and we
decide them together. In No. 77-1137 (the South Carolina [**2] case), the
plaintiff sought injunctive relief and money damages for alleged mistreatment
by fellow inmates, acquiesced in by prison guards. He sued the warden and
a commissioner of the Department of Correction. The district court required
the defendants to supplement their pleadings and permitted plaintiff to
supplement his, in an effort to determine if plaintiff had a meritorious
cause of action. On the expanded pleadings and affidavits, the district court
granted summary judgment for the defendants. In No. 77-1194 (the Maryland
case), plaintiff sued the warden for damages for the loss of a watch allegedly
stolen during a shakedown search. The district court permitted the filing
of plaintiff's pro se [*1149] complaint, but granted the defendants' motion
to dismiss under Rule 12(b)(6), F.R. Civ. P. It denied a subsequent motion
for leave to amend.

We reverse in both cases.

I. The South Carolina Case

Walter Gordon, convicted of a felony by a South Carolina
state court, was placed under psychiatric observation in Cell Block Two at
the Central Correctional Institution at Columbia, South Carolina, shortly
after he began service of his sentence. On January 29, 1976, he [**3] was
removed to Cell Block One, where he became part of the general population
of the prison. On February 3, 1976, he was transferred to Kirkland Correctional
Institution.

According to Gordon, he was subjected to a brutal beating,
robbery and homosexual rape by four fellow inmates sometime between January
29 and February 3. He claims that the several attacks were witnessed by two
correctional officers who did nothing to prevent or halt them. He further
alleges that on February 1, 1976, he requested the Deputy Warden to provide
him protection but that the Deputy Warden failed to act upon his request
except to return him to the psychiatric cell block.

In addition, Gordon alleged that he was thereafter
duped by another inmate, a certain Thomas Massey, into causing his family
to send $50.00 to Massey who would prepare a writ that would "guarantee"
Gordon's release.

Gordon's pro se complaint was filed against William
D. Leeke, a commissioner of the South Carolina Department of Correction,
and J. R. Martin, Warden of the Central Correctional Institution. As relief,
Gordon sought an order that the administration at Central Correctional
Institution be corrected, that defendants be [**4] fined, and that he be
awarded money damages.

The complaint was hopelessly inadequate to allege a
cause of action on which relief could be granted. Among other things, it
failed to state either the date of the alleged attack, whether it occurred
in Cell Block One or Two, and the identity of either the attacking inmates
or the acquiescent guards. The defendants answered, denying knowledge of
any alleged abuse of Gordon, but conceding that the records disclosed that
Massey received $50.00 from "J. H. Gordon." They raised certain legal defenses,
pleaded a lack of knowledge of many of the essential facts, and moved to
dismiss the complaint under Rule 12(b)(6). In a reply to this answer, Gordon
conceded that Massey had refunded the $50.00 and this phase of Gordon's claims
was effectively eliminated from the case.

The district court ruled that, with respect to the
alleged assault, it could not dismiss the complaint under Rule 12(b)(6),
nor could it grant summary judgment for defendants. At the same time, it
ruled that it would not set the case for trial until the pleadings had been
amplified so that it could determine if Gordon had alleged at least a colorable
claim. Accordingly, the [**5] district court required defendants to supply
additional information and it afforded Gordon the opportunity to respond
thereto.

As a result of defendant's supplemental answer, with
affidavits and exhibits thereto, and Gordon's verified responses, including
an affidavit from another inmate, some of the details of Gordon's alleged
cause of action emerged. In another interim ruling, the district court recited
(1) that Gordon's statements fixed the date on which the assault on him had
occurred as January 29, 1976; (2) that the affidavit of another inmate, Joe
Harris, stated that he saw ("in January, 1976, I don't remember the exact
date,") four black inmates pull Gordon into a cell and beat him while two
black officers stood by and watched without intervening; and (3) that Gordon,
whose face was badly beaten, said about an hour later that he had been raped
and robbed but made no claim to the prison authorities that he had been assaulted
until April 7, 1976, although he had conversed with at least one official
after the alleged incident. The district court stated its belief that Gordon's
case was "nebulous, at best," and that his claim [*1150] of rape was highly
suspect because he [**6] did not inform the prison authorities of it until
April 7, 1976. Nonetheless, the district court directed Gordon to submit
an affidavit identifying any persons whom he claimed raped him and directed
defendants to submit an affidavit from the officer in charge of the cell
block in which Gordon was incarcerated on January 29, 1976 as to any incident
of the type which Gordon alleged.

In response, Gordon filed three affidavits. In the
first, which was made by him, he noted that he had previously declined to
name his attackers because of fears for his life; he then stated that, while
he did not know the names of three of them, the name of the fourth was Bernard
Brown. The second affidavit was that of Joe Harris who said that one of the
guards who had witnessed the attack was Officer Reilly [sic] and that Harris
could identify him by reason of previous contacts between the two of them.
The third affidavit was that of David Johnson, another inmate, who said that
Gordon had told him on the day of the incident that Gordon refused medical
treatment for his face because he feared that disclosure of the incident
might endanger his life.

In response, defendants filed a second and third [**7]
supplemental answer supported by affidavits and prison records. Succinctly
stated, these pleadings asserted that Assistant Correctional Supervisor M.
Woodward, Jr., was in charge of the cell block in which Gordon was confined
on the date of the alleged incident, but that Woodward had no knowledge,
nor did he receive any report, of any attack on Gordon. Neville Riley, the
correctional officer named by Harris, made an affidavit that he was the only
person of that name employed as a correctional officer at the Central
Correctional Institution but that he was not on duty on January 29, 1976
and was never aware that Gordon had been assaulted or in any way physically
abused. The attendance records of the institution showing that Riley did
not work on January 29 were attached.

On the pleadings, expanded as recited above, the district
court made a final ruling. On its analysis of the facts, it candidly disclosed
that "the Court is not fully persuaded that some type of assault did not
occur." Notwithstanding, the court dismissed the complaint on the grounds
that, factually, Gordon had alleged no cause of action against Leeke and
Martin and, legally, they could not be held liable in an [**8] action under
§ 1983 for the misconduct of their subordinates under the doctrine of
respondeat superior.

The Maryland Case

Wayne Stephen Young sued George H. Collins, Warden
of the Maryland Penitentiary, under § 1983 for money damages and injunctive
relief. Young alleged that he was removed from his cell in the West Wing
of the Penitentiary, as were all other prisoners in the West Wing, for a
shakedown search conducted on September 10, 1976, and that during the search
only corrective officers were present in the cell. When he was returned to
his cell, he discovered that his watch and metal watchband had been
stolen.

The defendant moved under Rule 12(b)(6) to dismiss
the complaint, and the district court granted the motion. It noted that Young
had alleged that "only corrections officers were in the wing at the time";
but it concluded that since Young failed to allege that the warden even knew
that the search was taking place, let alone that he was involved in the theft,
a claim for relief was not stated since the doctrine of respondeat superior
was inapplicable. When Young thereafter moved to strike the order of dismissal
to permit him "to prepare and submit an amended [**9] complaint establishing
proper grounds for proceeding in the prosecution of this case," the district
court denied the motion. It filed another memorandum justifying its denial
on the ground that Young had not alleged, either in his original complaint
or in his motion, any facts to show that the warden was personally involved,
nor did Young allege any facts not set forth in the original complaint.

[*1151] II.

It is now established doctrine that pleadings should
not be scrutinized with such technical nicety that a meritorious claim should
be defeated, and even if the claim is insufficient in substance, it may be
amended to achieve justice. Rice v. Olson, 324 U.S. 786, 791-92, 89 L. Ed.
1367, 65 S. Ct. 989 (1945); Holiday v. Johnston, 313 U.S. 342, 350, 85 L.
Ed. 1392, 61 S. Ct. 1015 (1941). In one of the latest expressions on the
subject, Haines v. Kerner, 404 U.S. 519, 521, 30 L. Ed. 2d 652, 92 S. Ct.
594 (1972), it was said that a complaint, especially a pro se complaint,
should not be dismissed summarily unless "it appears 'beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would [**10]
entitle him to relief,'" quoting from Conley v. Gibson, 355 U.S. 41, 45-46,
2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).

Our own decisions reflect these views. In Burris v.
State Department of Public Welfare of S.C., 491 F.2d 762 (4 Cir. 1974), we
held that when plaintiff sued the South Carolina Department of Public Welfare
alleging that his application for welfare was denied without a hearing but
failing to allege a jurisdictional amount or other basis for federal
jurisdiction, the district court should have apprised his counsel of the
availability of 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3). We also
recognized that the named defendant was probably not a "person" within the
meaning of § 1983, but we directed the district court to consider the
case on its merits "assuming that the complaint is amended to come within
these statutes." 491 F.2d at 763. To like effect is Johnson v. Mueller, 415
F.2d 354 (4 Cir. 1969). In Roseboro v. Garrison, 528 F.2d 309 (4 Cir. 1975),
we held that a district court must advise a pro se litigant of his right
under [**11] the summary judgment rule to file opposing affidavits to defeat
a defendant's motion for summary judgment.

The Fourth Circuit takes the position that its district
courts must be especially solicitous of civil rights plaintiffs.. . . .

This solicitude for a civil rights plaintiff with counsel
must be heightened when a civil rights plaintiff appears pro se. In the great
run of pro se cases, the issues are faintly articulated and often only dimly
perceived. There is, therefore, a greater burden and a correlative greater
responsibility upon the district court to insure that constitutional deprivations
are redressed and that justice is done. So, although the Court of Appeals
cannot mean that it expects the district courts to assume the role of advocate
for the pro se plaintiff, radiations [**12] from Burris strongly suggest
that the district court must examine the pro se complaint to see whether
the facts alleged, or the set of facts which the plaintiff might be able
to prove, could very well provide a basis for recovery under any of the civil
rights acts or heads of jurisdiction in the federal arsenal for redress of
constitutional deprivations. Accordingly, the Court in considering the
defendants' motion to dismiss will not permit technical pleading requirements
to defeat the vindication of any constitutional rights which the plaintiff
alleges, however inartfully, to have been infringed. 383 F. Supp. at
1399-1400.

III. The South Carolina Case

In the South Carolina case, in accordance with the
principles discussed, the district court was altogether correct in declining
to dismiss Gordon's complaint as originally drafted. It was theoretically
possible that Gordon could prove thereunder a state of facts which would
entitle him to recover, although it was certain that the precise basis for
recovery was not alleged. By the same token, the district court was [*1152]
correct in its initial determination not to grant summary judgment. What
might [**13] be a meritorious claim on the part of a pro se litigant unversed
in the law should not be defeated without affording the pleader a reasonable
opportunity to articulate his cause of action. We approve of the district
court's efforts to obtain from Gordon and defendants a full disclosure of
the facts of the case so that the district court could make an informed judgment
on its merits.

Nevertheless, we reverse because we think the district
court did not fully appreciate the additional facts that it obtained or recognize
that these facts were disputed and could not be resolved on motion for summary
judgment. From the additional pleadings, affidavits and exhibits, it appears
that Gordon is asserting that he was brutalized on January 29, 1976 by fellow
inmates, that the correctional officers, Neville Riley and another, were
present and saw what was transpiring, but, nevertheless, that Riley and the
other unknown guard declined to intervene and permitted the assault to continue.
In our view, Gordon has thus alleged a cause of action under §
1983.

Of course, Gordon's claim for damages is against Riley
and not the defendants he sued. Bursey v. Weatherford, 528 F.2d 483, 488
n.7 (4 Cir. 1975). [**14] Dismissal or summary judgment as to the warden
and the commissioner was proper. n1 But since the identity of Riley, one
of the correctional officers allegedly involved, was finally established,
the district court should have advised Gordon that, pursuant to Rule 19(a),
F.R. Civ. P., Riley could have been made a defendant and given Gordon leave
to join him.

- - - - - - - - - - - - - - Footnotes - - - - - - -
- - - - - - - -

n1 Since Gordon's various pleadings do not suggest
that the incident of which he complains was anything other than an isolated
one or that it resulted from any administrative policy established or maintained
by the warden or the commissioner, we see no ground for injunctive relief
against either.

- - - - - - - - - - - - End Footnotes- - - - - - -
- - - - - - -

Summary judgment as to Riley would be inappropriate
on the present record. Gordon now claims that Riley was one of the correctional
officers present at the January 29, 1976 attack and the allegation is supported
by the affidavit of Gordon's fellow inmate, Joe Harris. Of course, Riley
has stated by affidavit that he was not present and he has offered the
institution's [**15] attendance logs to corroborate him. It may well be that
Gordon has a weak case and little chance of recovery from Riley, but the
material fact of Riley's presence or absence is disputed and summary judgment
is inappropriate. Rule 56(c), F.R. Civ. P.

The Maryland Case

Of course, Young did not allege a claim for damages
upon which relief could be granted against the warden of the Maryland
Penitentiary. Bursey v. Weatherford, supra. n2 But we think that it was error
to deny a pro se civil rights litigant leave to amend his complaint even
though he did not state in his motion for leave how he would cure the
deficiencies in his pleading.

- - - - - - - - - - - - - - Footnotes - - - - - - -
- - - - - - - -

n2 In our view, Young's allegations were insufficient
to state a claim for injunctive relief against the warden. See n. 1,
supra.

- - - - - - - - - - - - End Footnotes- - - - - - -
- - - - - - -

It would seem to us that, on the basis of his allegations,
Young may have a claim for damages against the guard or guards who searched
his cell under § 1983. Since Young thus alleged facts under which a
meritorious [**16] claim might be proved, his complaint should not have been
dismissed; Young should have been granted the opportunity to disclose the
identity of the searchers, if known to him, and to have joined them as defendants
in substitution for the warden; or, if Young did not know their identity,
the court should have afforded him the opportunity to discover them from
the warden, either from his personal knowledge, the personal knowledge of
his subordinates or the records of the institution, and advised Young how
to proceed. A district court is not required to act as an advocate for a
pro se litigant; but when such a litigant has alleged a cause of action which
may be meritorious against a person or [*1153] persons unknown, the district
court should afford him a reasonable opportunity to determine the correct
person or persons against whom the claim is asserted, advise him how to proceed
and direct or permit amendment of the pleadings to bring that person or persons
before the court. If it is apparent to the district court that a pro se litigant
has a colorable claim but lacks the capacity to present it, the district
court should appoint counsel to assist him. n3

- - - - - - - - - - - - - - Footnotes - - - - - - -
- - - - - - - -

n3 We agree with our dissenting co-panelist that, rather
than to dismiss a claim having colorable merit but pleaded insufficiently,
a district court should appoint counsel to assist the pro se litigant. The
difficulty here is that neither was counsel for Young appointed, nor was
Young advised of the proper procedures to develop his claim.

In accordance with the foregoing, we reverse the judgments
in both cases and remand them for further proceedings in accordance with
the views we have expressed.

REVERSED AND REMANDED.

DISSENTBY: HALL

DISSENT: HALL, Circuit Judge, dissenting:

I. THE DISMISSALS

In the South Carolina case, while I believe that the
district judge might better have advised Gordon to join Riley as a defendant
and have given him leave to do so, I would nevertheless affirm the dismissals
in each case because I believe on the record presented to it each district
court properly held that the respective plaintiffs had failed to properly
state any cause of action under respondeat superior against the named parties
defendant. To me, Owens v. Oakes, 568 F.2d 355 (No. 76-1646 January 10, 1978)
is controlling in both cases and should be followed. The suit against
Superintendent Oakes was not different from the suits filed by Gordon and
Young here.

However, to me, neither dismissal creates res judicata
or collateral estoppel effects which would preclude either Gordon or Young,
or both of them from reinstituting a different suit against the culpable
parties whether known or unknown, [**18] yet identifiable in some manner
by reasonable due diligence assuming their respective suits are not otherwise
time-barred by the appropriate statute of limitations.

II. THE DUTY TO ASSIST THE LITIGANT

At the outset of the opinion, the majority notes that
these appeals present a unified question concerning ". . . . the duty of
a district court to assist a pro se prisoner-litigant in presenting a claim
under 42 U.S.C. § 1983" [Emphasis added]. When such a "duty" is confined
to the particular facts presented in these appeals, my reading of the majority
opinion concerning the "duty to assist" a litigant becomes, in reality, nothing
more than a pragmatic application of the rule favoring liberality in the
amendments to pleadings, and especially complaints, under Federal Rule of
Civil Procedure 15(a) together with the broad construction to be given to
the pleadings filed by a pro se prisoner litigant in civil actions as required
by Haines v. Kerner, 404 U.S. 519, 30 L. Ed. 2d 652, 92 S. Ct. 594
(1972).

The majority properly states and carefully indicates
that a district court is not required to act as an advocate for a pro se
[**19] litigant. I wholeheartedly concur with that express limitation placed
upon the majority's own holding. To me, the duty to "construe liberally"
and perhaps "to advise" is the court's. The duty to "present" and to "advocate"
is that of the litigant or his attorney.

n1 In part III of the majority opinion, in the section
devoted to the Maryland case, the court holds in part that:

. . . . when [a pro se] litigant has alleged a cause
of action which may be meritorious against a person or persons unknown, the
district court should afford him a reasonable opportunity to determine the
correct person or persons against whom the claim is asserted, advise him
how to proceed and direct or permit amendment of the pleadings to bring that
person or persons before the court. * * * *

Emphasis added.

To the extent that the majority creates a duty upon
the district courts to "direct" an amendment to the pleadings, I read the
majority additionally to hold that if the litigant fails to comply with the
court's "directives," embodied in an appropriate order, of which the litigant
has notice, that the suit may be dismissed. See Rule 41(b), Federal Rules
of Civil Procedure. Another alternative open to and currently utilized by
some district courts in this Circuit is the conditional dismissal, subject
to amendment of the defective pleading by the pro se litigant, upon pain
of final dismissal for failure to cure the legal deficiency or shortcomings
in his suit. I would likewise approve of this procedural vehicle for managing
a pro se suit. See Recommended Procedures for Handling Prisoner Civil Rights
Cases in Federal Courts, Federal Judicial Center, Tentative Report No. 2,
May 20, 1977, at 55-8 (cited hereafter as "Tentative Report; " Covington
v. Cole, 528 F.2d 1365, 1372-3 (5th Cir. 1976).

In Bounds, the Supreme Court held that an incarcerated
pro se litigant had a fundamental constitutional right of access to the courts
through the access to an adequate law library or from the adequate legal
assistance of persons trained in the law. The decision both in this court
and in the Supreme Court was clearly in the disjunctive. Smith v. Bounds,
538 F.2d 541, 544 (4th Cir. 1975); Bounds v. Smith, 430 U.S. 817, 827, 97
S. Ct. 1491, 1498, 52 L. Ed. 2d 72 (1977). Haines v. Kerner, supra, requires
no more than when an individual litigant chooses to proceed pro se and utilizes
his resources (now including legal references) to file pleadings, or other
documents, a district court must construe them broadly. 404 U.S. 519, 520-521,
92 S. Ct. 594, 30 L. Ed. 2d 652. n2

- - - - - - - - - - - - - - Footnotes - - - - - - -
- - - - - - - -

n2 Albeit in the context of pro se criminal representation,
the Ninth Circuit has held that Haines was not a "[case] for all seasons"
invoking a "duty to assist" an individual proceeding pro se. See United States
v. Trapnell, 512 F.2d 10 (9th Cir. 1975).

Should a district court, at some juncture, believe
that a case is "exceptional," it is clearly empowered, in its discretion,
to appoint counsel to assist the litigant in pursuing his or her respective
civil rights claim. 28 U.S.C. § 1915(d); Cook v. Bounds, 518 F.2d 779
(4th Cir. 1975).

With the entry of counsel, all aspects of the underlying
cause of action could be clarified, Loper v. Beto, 405 U.S. 473, 476 at n.2,
31 L. Ed. 2d 374, 92 S. Ct. 1014 (1972), and the proper parties could be
brought before the court, Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388, 389 at n.2, 29 L. Ed. 2d 619, 91 S. Ct. 1999
(1971).

During the course of the litigation, should discovery
become necessary, and hearings or a trial required later, n3 counsel will
certainly be in a far better position to assist the litigant and the court
than will the judge who chooses instead to struggle with [*1155] an unlearned
and sometimes barely literate prisoner. n4 Prevailing counsel could be awarded
attorneys fees in appropriate circumstances under the Civil Rights Attorney
Fee Awards [**23] Act of 1976, now codified as 42 U.S.C. § 1988.

- - - - - - - - - - - - - - Footnotes - - - - - - -
- - - - - - - -

n3 In the somewhat analogous field of federal and state
habeas corpus proceedings, in which litigants frequently proceed pro se,
counsel may be appointed to aid the litigant and the court in the discovery
process and during evidentiary hearings which may be conducted. See Rules
6(a) and 8(c) of the Rules Governing Section 2254 [and separately the Section]
2255 Proceedings for the United States District Courts, 28 U.S.C.A. foll.
§§ 2254, 2255 (effective Feb. 1, 1977). These rules pointedly
demonstrate the sound discretion vested in the district courts to consider
appointment of counsel when it will aid both the litigant and the court.

n4 Obviously, I do not urge wholesale appointment of
counsel in all civil rights cases, nor do I urge relaxation of the standards
set forth in Cook v. Bounds, supra. What I do recognize is that many pragmatic
problems beset a district judge in the administration of a pro se case beyond
simply allowing a prisoner to file and amend his suit. For example, the security
problem in prisoner cases undoubtedly presents a problem, Cook v. Bounds,
supra, 518 F.2d at 780 n.1, which the appointment of counsel can help alleviate,
United States v. Madden, 352 F.2d 792, 793 at n.1 (9th Cir. 1965). See also
Ballard v. Spradley, 557 F.2d 476 (5th Cir. 1977).

Finally, should individual counsel be unavailable for
any reason, certain states, including South Carolina, now have, or are developing
programs for inmate counseling and legal representation in various areas
of prison life including pro se civil rights suits. The Supreme Court has
recognized the role counsel can play in assisting prisoners in properly pursuing
their grievances, Bounds v. Smith, 430 U.S. 817, 97 S. Ct. 1491, 1499-1500,
52 L. Ed. 2d 72, at n.n. 19-20, and the district courts may be able to draw
from this source of attorneys when appropriate. n5

- - - - - - - - - - - - - - Footnotes - - - - - - -
- - - - - - - -

n5 In South Carolina, pursuant to LEAA funding grants,
now state funded, a clinic has been established which operates under the
auspices of the South Carolina Law School. Preliminary findings indicate
a dramatic statistical effect in the reduction of meritless prisoner cases,
both post-conviction and under § 1983, and the clinic has undertaken
the prosecution of at least one significant prisoners' rights § 1983
suit. Six Month Narrative Report, Consortium of States to Furnish Legal Counsel
to Prisoners, LEAA Grant 76-DF-99-0077, October 1, 1976 -- March 31, 1977,
Statistical Reports, South Carolina, para. 2.

While it will not cure the problems presented in the
cases now on appeal, district courts might want to consider amendments to
the standard preprinted forms utilized by prisoners in pro se civil rights
suits. Therein, on any cover page of instructions, or on the portion of the
heading of the suit, underneath where the defendants are to be named, some
language could be added in plain English such as the following:

You must name the people as defendants whom you contend
hurt you or caused you harm in some way. For example, if you are assaulted
by guards, their names must be stated if you know them, or in the alternative
you must make reference to them in some way. If you cannot name them, say
so, and state why.

In your complaint, you must state the facts (who, what,
when, where and how) that support your contentions, not mere
conclusions.

If you contend that the warden, or some other supervisory
official or their subordinates caused you harm, you likewise must name them
if known, or you must make reference to them in some way. If you cannot name
them, say so and state why. As noted, in your complaint, you also must state
the facts [**26] (who, what, when, where and how) that support your contentions
not mere conclusions.

Note: In order for a supervisory official, or the warden
to be liable for any harm you are claiming, you must allege and have some
proof that that person either expressly or implicitly authorized the conduct
which you contend harmed you, or have acquiesced in it in some way. n6

These appeals do not present the ever-present problem
of the patently frivolous or repetitive prisoners' rights cases which tax
[*1156] an already overburdened court system. n7 My concern lies instead
with the delicate procedural balance to be struck between the settled right
of an indigent to proceed pro se in the courts, the duty of such a litigant
to proceed by complying with certain of the basic rules of legal procedure
and substantive law, and the role the court is to impartially [**27] play
in monitoring such litigation throughout. n8 In striking that balance, no
matter how well-intentioned a judge may be, once he assumes the role of an
"advocate" for a pro se litigant, he or she will lose the respect of either
the pro se prisoner litigant, or the defendants whom he has sued or
both.

- - - - - - - - - - - - - - Footnotes - - - - - - -
- - - - - - - -

n7 The district courts have, at their ready disposal,
many procedural mechanisms to forestall the abuse of pro se suits. While
not exhaustive, a listing of those procedural tools are set forth as follows:
28 U.S.C. § 1915(d) (dismissal where action is frivolous or malicious);
28 U.S.C. § 1915(a) and Graham v. Riddle, 554 F.2d 133 (4th Cir. 1977)
(right to proceed in forma pauperis conditioned upon a showing of good cause,
and upon payment of the filing fee); Sanders v. United States, 373 U.S. 1,
10 L. Ed. 2d 148, 83 S. Ct. 1068 (1963) (successive claims ordinarily need
not be reviewed); and Carroll v. Brown, 560 F.2d 1177 (4th Cir. 1977) (summary
judgment).

There is a person in jail, Wayne Stephen Young, who
was convicted of raping and murdering a 10 year old Bais Yaakov girl, Esther
Lebowitz. Many Baltimoreans remember that horrible period of time when Esther
was missing for two days, and search parties were convened by every sector
and neighborhood of the greater Baltimore community. Nachi Schachter, on
behalf of the community, will appear before the Parole Board at the hearing
on Tuesday.

Young is up for parole and has a hearing scheduled
before the Parole Board this coming Tuesday morning. In the past, we have
fought hard to prevent his release, and have succeeded. It is important that
the Maryland Parole Board hear from the community that we strongly oppose
the release of this man, particularly given the heinous nature of his crime.

We ask the community to fax a brief letter to the Parole
Board before Tuesday voicing your opposition to Young's release. The fax
number for the Maryland Parole Board is 410-764-4355. Please urge your friends
and neighbors to join in this effort as well.

Thank you for your help and may we be spared any further
events of this nature in the future.

Just 3 minutes of your time and sending out a local fax will
hopefully help keep a convicted murderer in jail!

E-mail sent to members of the Baltimore Jewish
Community

Saturday, January 07, 2006 6:54 PM

Parole Hearing for Wayne S. Young

Dear community member,

35 years ago, a Bais Yaakov of Baltimore 10 year old
student was kidnapped and murdered. Her name was Esther Lebowitz. Wayne Young
was convicted of that murder. Many of us remember the days of searching and
the horror when the little girl's body was found a few days after she was
reported missing. The entire Northwest Baltimore community mourned and was
shocked that such a horrendous crime could take place right here in our
community.

Wayne Young is once again up for parole this Tuesday
January 10 th. Northwest Citizens patrol together with community Rabbi's
and community members are trying to stop his release. We all need to fax
the Maryland Parole Board urging them to deny his parole. You can help stop
this injustice. Please sign and fax the enclosed attachment to

The Maryland Parole Board : Fax # 410-764-4355.

Please send the enclosed attachment by fax by
Monday!!!!!!!!

Thank you for taking the time to keep your community
safe and for stopping this injustice. The court gave a sentence of life to
Wayne Young for the murder of Ester Liebowitz the sentence must be served
as given!

URGENT: Fax needed to the
Maryland Parole Board - In the memory of Esther
Lebowitz

The Awareness Center's Daily Newsletter - January 8,
2006

Please Forward this to everyone you know!

In the memory of Esther Lebowitz --

Please send out a fax will hopefully help keep a convicted
murderer in jail!

The Maryland Parole Board : Fax # 410-764-4355.

Thirty-five years ago, a ten year old girl by the name
of Esher Lebowitz was kidnapped and murdered. She was a student at the Bais
Yaakov School for Girls in Baltimore.

Wayne Young was convicted of that murder. Many residents
of the Jewish community in Baltimore remember the days of searching and the
horror when the little girl's body was found a few days after she was reported
missing. The entire Northwest Baltimore community mourned and was shocked
that such a horrendous crime could take place in their community.

Wayne Young is once again up for parole this Tuesday,
January 10th, 2006.

In the honor of the memory of Esther Lebowitz, we are
asking everyone to send a fax to the Maryland Parole Board urging them to
DENY Wayne Young's parole. You can help stop this injustice.

Please cut and paste the statement below to a word
document, sign it, and then fax it to:

The Maryland Parole Board : Fax # 410-764-4355.

Please send the statement below by fax by
Monday!!!!!!!!

Thank you for taking the time to keep the community
safe and for stopping this injustice. The court gave a sentence of life to
Wayne Young for the murder of Ester Liebowitz the sentence must be served
as given!

----------------------------------------

Fax to: The Maryland Parole Board : Fax #
410-764-4355.

1/8/2006

Maryland Parole Board:

Request not to parole convicted murder Wayne Young

We Baltimore City and county residents urge the Maryland
Parole Board to deny parole for convicted murderer Wayne Young. We ask that
the sentence of the court of a life sentence be carried out as it was
administered by a court of law for the murder of Esther Lebowitz.

On her way home from school Sept. 29, 1969, Esther
Lebowitz, a fifth-grade student at the Bais Yaakov School for Girls, stopped
by a wholesale tropical fish store on the 5500 block of Park Heights
Avenue.

That was the last time anyone saw 11-year-old Esther,
the daughter of Abraham and Shulamith Lebowitz, alive. Three days later,
Esther's body was found "little more than half a mile from her home," as
reported in The Sun.

A jury later found Wayne Stephen Young, 23, owner of
the fish store, guilty of homicide and sentenced him to life in prison. Young,
who had no previous offenses and pleaded not guilty, hit Esther on the head
with a hammer and dumped her body on the side of a road, throwing her bookbag
in a dumpster, according to The Sun at that time. The Sun also reported that
Esther was raped, a claim that Young was not charged with and continues to
deny.

Last Tuesday, Jan. 10, a parole hearing was held for
Young at the Maryland Correctional Institution in Hagerstown. The hearing
was officiated by Maryland Parole Commissioners Michael Miller and Candice
Beckett. This was Young's 11th parole hearing.

The commissioners interviewed Young, who is incarcerated
at the Maryland Correctional Training Center in Hagerstown, for approximately
30 minutes. After about five minutes of deliberation, they told Young that
his parole was denied.

Prior to announcing the decision, Commissioner Miller
told Young that if he had committed the crime today, he likely would not
have even been eligible for parole because of new laws protecting
children.

While grilling Young, Commissioner Beckett said to
him at one point, "You don't know why you hit her four times?... What price
do you think you should pay [for giving] a little girl the death
penalty?"

Young has been eligible for parole since 1980. He will
be eligible again in Jan. 2009.

At the hearing, Neil Schachter, president of the Northwest
Citizens Patrol, represented the Lebowitz family, which moved to Israel shortly
after the murder. Mr. Schachter put together a petition and amassed a collection
of statements from the community - including letters from Rep. Benjamin L.
Cardin (D-3rd) and Mayor Martin O'Malley - opposing Young's release.

"I wouldn't want my worst enemies to be in the same
place with this guy," Mr. Schachter told the Baltimore Jewish Times.

At the start of the hearing, Mr. Schachter was given
five minutes to speak, and he placed a photograph of the blond-haired, blue-eyed
girl in front of the commissioners and read a statement written by Lebowitz's
brother, Simon.

"The effects of this crime are still with us in many
ways," the letter stated, noting that every time the Lebowitz family hears
about a missing child, they experience "a reawakening of our own grief."

Mr. Lebowitz wrote that he and his family have been
"shattered," and that the homicide prompted their move to Israel. While saying
he recognizes that some people may believe Young has paid his dues during
35 years of incarceration, he wrote that "the idea [that] this monster who
crushed my sister's soul" could walk the streets again is overwhelming.

"Would we want him in our neighborhood?" the letter
read.

Pikesville resident Bob Steinberg disagrees. Through
the Jewish Big Brother/Big Sister League, Mr. Steinberg, a semi-retired
businessman, started visiting Young after the convicted murderer was first
sentenced. Mr. Steinberg said he has developed a "personal friendship" with
Young over the years. He called Young, now 60, a "good conversationalist"
who "likes to write science fiction and thinks he's good at it."

Over the years, Mr. Steinberg said he has traveled
more than 50 miles a couple times a month to visit Young. He said Young has
even made him the heir to his estate.

Mr. Steinberg said he believes Young is fully
rehabilitated, pointing out that he has earned a high school diploma and
college degree while in prison, and even worked as a paid employee for around
10 years in the printing industry before the work-release program was suspended.
Mr. Steinberg said Young "does not represent any threat to society."

In their meetings over the years, Mr. Steinberg said
he and Young have never spoken about Esther's murder.

At the hearing, Young greeted the commissioners with
a smile. He said he felt "deep remorse for his actions," and that he "thinks
of [the murder] constantly."

"I cry every night," he said. "I apologize to God a
thousand times for what happened. The consequences of those actions have
not only destroyed [Esther's] life, but mine and my mother's."

Through years of psychiatric treatment in prison, Young
said he has explored his behavior and actions, saying that he was living
with his mother at the time of the murder and was fighting intensely with
her. "I took out my aggression on an innocent victim," he said.

Young told the commissioners that he has been a model
prisoner, making all attempts to stay out of trouble. "I spend 22 hours a
day in my cell," he said. "I don't even want to be around other prisoners.
They have nothing on their mind but trouble."

If released, Young said he just "wants to disappear
into obscurity and be a taxpaying citizen."

While being led back to a cell, Young mouthed the words,
"Three more years," to Mr. Steinberg, alluding to his next potential parole
hearing.

'69 murder still rattles community - Killer of young
Esther Lebowitz denied parole

By Louis Llovio

Owings Mills Times - January 19, 2006

Almost 36 years after murdering 11-year old Esther
Lebowitz, Wayne Stephen Young last week was denied parole for the 11th
time.

His parole was refused largely because of the efforts
of the same people his crime so rattled in 1969.

Letters and faxes from residents of northwest Baltimore
County who grew up in and around Park Heights and remember the girl's grisly
murder helped convince the two members of the Maryland Parole Commission
who heard the case to rule against Young's parole "in minutes," a witness
at the hearing Jan. 10 said.

Neil Schachter, president of the Northwest Citizens
Patrol, said the board showed Young a file with letters and petitions from
the community "2 to 3 inches thick" containing pleas to keep him in
prison.

That community outpouring, Schachter said, "made an
obvious difference."

One handwritten letter with 25 signatures urged the
board to refuse Young's parole request because the murder had caused "fear
and trepidation in every home."

Another letter said that Young "stole the life of Esther
Lebowitz, and with it stole the innocence of many children growing up in
that time period."

Schachter, who was named their designee by the Lebowitz
family - Lebowitz's parents, brother and sister moved to Israel shortly after
the girl's murder - testified that the crime was so horrific that Young "couldn't
be let back out onto the streets."

Schachter told the board that, even though the crime
was committed 36 years ago, "you can't take a chance" on someone who committed
such an act on a little girl.

To understand the community's fury one must understand
the permanent impression the murder left on those who lived nearby.

One September day

On Sept. 29, 1969, Rabbi Boruch Miliknowsky was driving
three girls home from the Bais Yaakov School on Greenspring Avenue. One was
Esther Lebowitz.

Her mother, who worked at the school, had given her
50 cents that day to buy a notebook clip at a local drugstore, located at
the corner of West Rogers and Park Heights avenues, several blocks from their
home.

Miliknowsky dropped her off at the store at 1:45
p.m.

The family never saw the fifth-grader alive again.

Her body was found by three police officers at 10 a.m.
Oct. 1 near the University of Baltimore in midtown Baltimore.

According to a Sun story of Oct. 2, 1969, assistant
medical examiner Dr. Ronald Kornblum said Lebowitz had been struck on the
head with a blunt instrument "at least 17 times." He also said that she had
been sexually molested.

Police were able to match "very refined" gravel found
at the scene with gravel used in fish tanks.

Young, then 23, and his mother owned Tropical Fish
Haven on Park Heights Avenue. The fish store sat 50 feet from the drugstore
where Miliknowsky dropped off the girl.

Indicted on rape and murder charges, Young was convicted
of the murder charge in November 1970.

He is serving a life sentence at the Maryland Correctional
Training Center in Hagerstown.

The impact

For Gail and Lauren, two girls who grew up in the
neighborhood near Lebowitz, the impact of the crime has been lasting. Almost
40 years later, both women requested their last names be withheld for fear
of retribution should Young ever be paroled.

Gail lives in Reisterstown. She was 12 years old on
that September day and lived in the same Park Heights neighborhood as
Lebowitz.

Lauren, who lived nearby, now resides in
Pikesville.

The murder was like a stone thrown into a calm pond,
the women said, the ripples endless and far-reaching.

"He robbed her (Lebowitz) of her life and robbed us
of our innocence," Gail said.

Lauren said "to this day" she is terrified. Anytime
she hears of a child molested or kidnapped, she reflexively thinks of
Lebowitz.

For days after Lebowitz disappeared, the crime was
front-page news, they said.

Terrified parents wouldn't let children outside unattended.
In fact, life didn't return to normal, even long after Young was arrested
Oct. 3.

"It was always there, hanging over us," Lauren
said.

They said even though the crime happened so long ago,
they were at such an impressionable age that today, as mothers themselves,
they automatically think of Young when they worry about their children.

"He was our own personal boogeyman," Lauren said.

Short-termed relief

The women were among many others in the community who
were ecstatic when word spread last week that Young had again been refused
parole.

"That's all anybody is talking about," said a woman
answering phones at Bais Yaakov School.

But the relief may be short-lived.

The same people who fought so hard this month to keep
Young behind bars must fight the same battle three years from now.

According to L. Thomas Pennewell, program manager for
hearings for the Maryland Parole Commission, Young is eligible to have another
parole hearing in 2009.

"When they said life in prison, we thought they should
have meant life in prison," Gail said.

Lauren agrees.

"Life should be life."

There are no transcripts from the hearing, but according
to Schachter, Young "said he had remorse."

But Gail, for one, doesn't care.

"I don't want him on the streets," she said. "I don't
want him walking the Earth."

Convicted Murderer of Orthodox Girl Will Not Get New TrialBy Marc ShapiroBaltimore Jewish Times - April 25, 2014

A man who was found guilty of killing an 11-year-old Orthodox girl in 1969 was denied a new trial Thursday, according to reports.

Wayne Stephen Young will continue to serve jail time for the murder of Esther Lebowitz after Baltimore Circuit Court Judge Edward Hargadon made his decision Thursday.

The possibility of a new trial came about because of what is known as the “Unger ruling,” which cites that incorrect jury instructions administered in Maryland courtrooms may have led to unfair trials. Young, now 68, has been denied parole 12 times.

Hargadon wrote in her decision that instructions were “crisp and constitutionally sound,” according to the Baltimore Sun.

About 250 members of the Baltimore Jewish community packed a March hearing in protest of the possible new trial. People traveled by bus, car and subway to attend the hearing, and many silently read from prayer books.

Lebowitz, who was a student at Bais Yaakov School for Girls, was last seen in Pikesville after being dropped after at a drugstore after school. Her body was found three days later in a ditch not far from her Mount Washington home.

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Survivors ARE Heroes!

The Awareness Center believes ALL survivors of sex crimes should be given yellow ribbons to wear proudly.

Survivors of sexual violence (as adults and/or as a child) are just as deserving of a yellow ribbon as the men and women of our armed forces, who have been held captive as hostages or prisoners of war.

Survivors of sexual violence have been forced to learn how to survive, being held captive not by foreigners, but mostly by their own family members, teachers, camp counselors, coaches babysitters, rabbis, cantors or other trusted authority figures.

For these reasons ALL survivors of sexual violence should be seen as heroes!